Richard Ruiz v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

98-01082 Ruiz v State of Texas.wpd No. 04-98-01082-CR
Richard RUIZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-2437
Honorable James E. Barlow, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: June 28, 2000

ABATED AND REMANDED

Richard Ruiz appeals his convictions for aggravated sexual assault and indecency with a child, arguing the (1) trial court erred in overruling his objections to the jury charge, (2) the trial court erred in overruling his objections to the prosecutor's closing arguments, (3) the trial court erred in failing to hold a hearing on his motion for new trial, and (4) his trial counsel provided ineffective assistance. We hold the trial court erred in failing to hold a hearing on Ruiz' motion for new trial and abate the appeal so the trial court may hold the hearing.

Factual and Procedural Background

On March 8, 1997, Linda Cantu-Ruiz engaged in an argument with her husband Richard Ruiz. After the argument, Valerie, Linda's twelve year-old daughter, approached her mother and told her Ruiz, Valerie's step-father, had been "doing things to her." Specifically, Valerie claimed Ruiz had been touching her in places he should not have been. Linda immediately left the house with Valerie, went to her mother's house, and called the police. After the police arrived, Officer Catherine Frisce interviewed Valerie alone, at which time Valerie stated that Ruiz had molested her only one or two days earlier. According to Valerie, she was asleep in Ruiz and Linda's bed when Ruiz pulled up her shirt and kissed her breasts, then proceeded to pull down her shorts and underwear and penetrated her vagina with his finger. Valerie also indicated that this had been happening over a prolonged period of time, and that on previous occasions Ruiz penetrated her anus with his fingers. After the interview was complete, Linda took Valerie to the hospital for an examination. During this examination, Valerie told the nurse that Ruiz touched her breasts, penetrated her vagina and anus with his fingers, and made her touch his penis. From the hospital, Linda took Valerie to the Alamo Children's Advocacy Center, where she was the subject of another physical examination. During this examination, the nurse practitioner noted a well-healed tear in Valerie's hymen, which was "consistent with forceful digital penetration, or with penetration by something else."

Ruiz was indicted on seven counts of indecency with a child and aggravated sexual assault. Of the four counts eventually submitted to the jury, Ruiz was found guilty of two--one instance of indecency with a child and one instance of aggravated sexual assault. Ruiz was subsequently sentenced to ten years in prison on each count. Ruiz filed a motion for new trial "on the grounds of ineffective assistance of counsel." Ruiz attached to the motion his own sworn statement, detailing the grounds for his ineffective assistance claim. Although Ruiz requested a hearing on his motion, the trial court denied the motion for new trial without a hearing. Ruiz appeals, arguing, among other things, the trial court erred in failing to grant a hearing on his motion for new trial. (1)

New Trial Hearing

We review a trial court's decision not to hold a hearing on a motion for new trial under the abuse of discretion standard. See Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994);Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). As a prerequisite to a hearing, a defendant must accompany his motion with an affidavit "specifically showing the truth of the grounds asserted" in the motion for new trial. Jordan, 883 S.W.2d at 665. However, the affidavit need not "reflect every component legally required to establish relief." Id. A trial court abuses its discretion in failing to hold a hearing if the motion and affidavit raise "reasonable grounds for relief which are not determinable from the record." Id.

Here, Ruiz attached his own affidavit in which he detailed several grounds for his ineffective assistance claim. First, he stated that his counsel "spent only four hours with [him] before trial, none in preparation." Ruiz went on to break down the time his attorney actually spent from the initial consultation to the end of trial. Ruiz also said that he informed his attorney of various facts, which his attorney failed to raise at trial. For instance, Ruiz claimed he saw the complainant masturbating prior to the time she made the allegation of sexual assault, yet his attorney never raised this issue at trial. Ruiz also stated his attorney never met his character witnesses before trial and he failed to fully develop their testimony. Specifically, Ruiz claimed his brother "would have been willing to testify that [his] reputation for truthfulness and veracity was very good." Finally, Ruiz stated that his attorney told him that the complainant's sister, who was allegedly asleep in the same bed where Ruiz assaulted the complainant in early March, had given a statement to the police in which she said that she never saw or heard anything on the night in question. Yet, Ruiz complained, his attorney never subpoenaed the sister to testify.

Thus, in claiming ineffective assistance, Ruiz raised issues that were not determinable from the record. Jordan, 883 S.W.2d at 665. Furthermore, his claim that his counsel was unprepared for trial, particularly in failing to investigate facts, call witnesses, and elicit testimony that could have been exculpatory, is a reasonable ground for his ineffective assistance claim. (2) See Butler v. State, 716 S.W.2d 48 (Tex. Crim. App. 1986); Doherty v. State, 781 S.W.2d 439 (Tex. App.--Houston [1st Dist.] 1989, no pet.). Therefore, we hold the trial court erred in failing to grant Ruiz a hearing on his motion for new trial, see Reyes, 849 S.W.2d at 816, abate this appeal, and remand the cause for a hearing on the motion.

Sarah B. Duncan, Justice

Do not publish

1. Although Ruiz first raised this issue in his reply brief, "we may, in the interest of justice, review unassigned error." Bird v. State, 927 S.W.2d 136, 142 n.7 (Tex. App.--Houston [1st Dist.] 1996, no pet.).

2. We note that Ruiz' affidavit does not suffer from the same deficiencies as the defendant's in Jordan v. State, 883 S.W.2d 664 (Tex. Crim. App. 1994). Ruiz explained not only who could have provided exculpatory evidence, but also what that evidence would have been. Compare Jordan, 883 S.W.2d at 665-666.